[00:00:01] Speaker ?: December 18th at 715 H Investment LLC, Appellant vs. District Attorney at L. [00:01:05] Speaker 03: May it please the court, Jim Stavsky, for the Appellant Edge Investment, LLC. [00:01:11] Speaker 03: I'll ask the deputy to reserve two minutes for rebuttal. [00:01:14] Speaker 03: The senior of my left shoulder in the first row there is Lindy Stevens. [00:01:18] Speaker 03: I'd be remiss if I didn't compliment her for helping me with this briefing. [00:01:23] Speaker 03: I think one of the reasons we got 10 minutes here is because the briefing was well done in the case. [00:01:27] Speaker 03: She's not admitted here yet. [00:01:30] Speaker 03: Another matter, Judge, of the case I'll talk about, the Wai case, H-O-A-I, [00:01:35] Speaker 03: was actually decided almost 30 years ago to the day in February of 1989. [00:01:42] Speaker 03: There are two lawyers on that case who are both lawyers with my firm. [00:01:46] Speaker 03: One of them is no longer with us and one of them is retired. [00:01:49] Speaker 03: So 30 years our firm is litigating the case again on the Colorado River. [00:01:54] Speaker 03: And there's a good reason for that because this court should not see Colorado River stays with the frequency you're gonna see them if this judge is [00:02:05] Speaker 03: decision is upheld. [00:02:07] Speaker 03: We go back to the basics. [00:02:10] Speaker 03: The Colorado River abstention doctrine is the narrowest of extension doctrines, and it was instituted on very specific facts where the federal court had given a grant of jurisdiction to resolve water rights disputes involving thousands of litigants in different districts in Colorado. [00:02:32] Speaker 02: Well, if the doctrine had been confined to that, I would agree, extreme case on a wide variety of grounds, then we clearly would. [00:02:44] Speaker 02: No problem. [00:02:45] Speaker 02: But it has been applied more broadly to cases where there are [00:02:56] Speaker 02: essentially issues of state law of complexity and widespread interest. [00:03:03] Speaker 02: Now, this may not qualify by those criteria. [00:03:08] Speaker 03: I agree that other circuits and other district courts have taken Colorado River to different places, and I would argue that the Supreme Court has never taken Colorado River. [00:03:17] Speaker 00: Has this court ever found Colorado River abstention, ever? [00:03:24] Speaker 03: In a decision upholding it? [00:03:27] Speaker 00: No, no, not the Supreme Court since Colorado River ever. [00:03:34] Speaker 03: No. [00:03:37] Speaker 03: And that is precisely the point. [00:03:39] Speaker 00: That might be the example of rare. [00:03:42] Speaker 03: Correct. [00:03:43] Speaker 03: And what this court found as rare judge, as we all know, is routine. [00:03:50] Speaker 03: This judge found exceptionality in statutory construction. [00:03:56] Speaker 03: Delegation, the public duty doctrine, due process and demolition cases, these are, and then there was another one I'm forgetting, but these are bread and butter things that courts decide all the time. [00:04:11] Speaker 01: Well, but they're questions of state law. [00:04:15] Speaker 01: They seem to be novel. [00:04:18] Speaker 01: and they seem to bear on structural issues regarding the DC government. [00:04:29] Speaker 03: Yes and no. [00:04:30] Speaker 03: There are two issues that the judge decided were, to his view, unique under DC law. [00:04:37] Speaker 03: But those two statutes have nothing to do with the fundamental interest in the case of due process under the Constitution. [00:04:46] Speaker 03: Those two statutes, if violated, one was 6801, would provide an additional grounds for why there was a due process violation because if a government did something that was illegal under its own statute, then there's a problem. [00:05:04] Speaker 03: But the fundamental issues in the case are not whether there's a proper delegation of authority, and that's actually a simple issue in interpreting a mayor's order, not whether there was the authority to raise the building. [00:05:18] Speaker 03: The fundamental answers are why did they not give EDGE investment a hearing before the demolition, after the demolition, before they put liens on his property, after they put liens on his property, and those issues [00:05:33] Speaker 03: are not unique state issues at all. [00:05:35] Speaker 03: Those are primarily, fundamentally federal issues. [00:05:38] Speaker 01: One of the claims in the federal case, as I understand it, it's couched as a declaratory judgment claim, but it is the claim that the demolition is unlawful because the DC agency didn't have properly delegated authority from the mayor. [00:06:01] Speaker 03: That is correct, Judge. [00:06:02] Speaker 03: But the declared by judgment claim is likely moved now because that statute that existed in 2015 no longer exists in the form that it exists in 2018. [00:06:17] Speaker 03: So we'll probably, that claim will probably be moved. [00:06:21] Speaker 01: I'm sorry, I missed it. [00:06:22] Speaker 01: What's moved, the declaratory judgment statute or the delegation? [00:06:25] Speaker 03: Yeah, the declaratory judgment cannot judge what is to declare that 6801A did not give the DC government the authority to do what they did. [00:06:33] Speaker 03: That statute has since it existed in 2015 been modified to provide for procedural due process protections that it didn't have before. [00:06:44] Speaker 03: And there's actually another statute, a quick take statute as well. [00:06:48] Speaker 03: So 6-801 does not exist in its present form anymore. [00:06:52] Speaker 01: No, but if the improvement is to ramp up [00:06:56] Speaker 01: the extent of procedural protection, that doesn't really answer the question whether the mayor can assign the function to the agency delegation question. [00:07:08] Speaker 03: Well, I still don't think that's a conflict issue, Judge, of state law. [00:07:11] Speaker 03: The statute says the mayor shall examine the structure that is in danger. [00:07:19] Speaker 03: That's not [00:07:21] Speaker 03: asking a court to find what's necessary and proper. [00:07:25] Speaker 03: That's a very distinct mandatory obligation, so I don't even think that's novel at all. [00:07:28] Speaker 03: I think that's simple. [00:07:29] Speaker 01: Fair point, but if we're debating the degree of novelty and importance and so on, one difficult point for you is the standard of review, which is abuse of discretion, and that seems to be [00:07:48] Speaker 01: a little bit in the weeds of the district court's discretionary judgment. [00:07:53] Speaker 01: Any old question of state law, it's his assessment of this particular one that seems discretionary. [00:08:02] Speaker 03: On the abusive discretion standard, the standard that applies, we have a difference of opinion with DC Water. [00:08:08] Speaker 03: They are most analogous to throwing out the challenge flag and you have to give deference [00:08:14] Speaker 03: to the district court unless there's clear and obvious video evidence of review. [00:08:18] Speaker 03: I don't think you have to give deference to any of the decisions that the judge made along those lines if they are legal issues. [00:08:26] Speaker 02: You don't have to give deference... Isn't this... Unless one has a very clear, demanding vision of Colorado River extinction, which may be the right vision, unless you have that, [00:08:42] Speaker 02: This is exactly the sort of case where we do defer to district judges, which is a wide array of complicated little issues which fit in and we expect the district courts to weigh those complicated issues and we give up any hope of being able to [00:09:05] Speaker 02: to provide clear guidance because there are so many different variables. [00:09:10] Speaker 03: Well, we can't predict today all the different cases that could arise, but I disagree that you have to give the degree of deference to the judge that you would where he's evaluating the credibility of a witness or the misability of a piece of evidence. [00:09:26] Speaker 03: Whether the doctrine applies is a legal decision. [00:09:29] Speaker 03: What is a novel or complex issue? [00:09:31] Speaker 03: You have the same record that this judge had before him. [00:09:35] Speaker 03: There was no testimony or transcripts to decipher. [00:09:37] Speaker 03: So you, I do not believe, have to give deference to clear errors of law. [00:09:42] Speaker 03: And there are clear errors of law in this case. [00:09:44] Speaker 02: The clear errors of law if Colorado River is [00:09:51] Speaker 02: is as sharply confined as the unflagging obligation line suggests. [00:09:59] Speaker 00: If it's gotten looser, then there isn't a clear... Well, the question isn't a question whether any court to which this court has to defer has let it be any looser. [00:10:11] Speaker 00: The Supreme Court is the only one we have to defer to. [00:10:14] Speaker 00: It said we have an unflagging obligation. [00:10:17] Speaker 00: Our court has continued to say it has an unflagging [00:10:20] Speaker 00: obligation. [00:10:23] Speaker 00: No other authority can make it any looser. [00:10:26] Speaker 03: I agree, and I think that there's been mission creep across the board at the district court level, at the circuit level, and it's evident from some of the cases that Judge Kelly cited. [00:10:37] Speaker 03: You have a seventh circuit test that has 12 factors, you have another circuit test that has 10 factors, and the Supreme Court has limited to other factors. [00:10:45] Speaker 00: I thought that also you point out in your brief, the Supreme Court was quite clear about what abusive discretion means here, and in a way that it doesn't usually say. [00:10:56] Speaker 00: That is to say that the district court is discretion is not to say that the decision is unreviewable. [00:11:01] Speaker 00: Such discretion must be exercised under the relevant standard prescribed by this court, namely the Supreme Court. [00:11:08] Speaker 03: That's correct. [00:11:10] Speaker 03: this court, when it had the last chance to look at Colorado Revoke in the Hawaii case, said very specifically what piecemeal litigation meant in that context. [00:11:20] Speaker 03: And it only meant in the context of what Colorado envisioned was a comprehensive state court scheme or some countervailing state interest. [00:11:31] Speaker 03: And that's where the judge lost it. [00:11:34] Speaker 00: Some of the factors that the judge applied novel state court. [00:11:38] Speaker 00: Is the Supreme Court or our court ever said that that is a factor? [00:11:41] Speaker 03: I have not seen that in a decision, Judge. [00:11:43] Speaker 00: Complicated state court. [00:11:45] Speaker 00: Is that an issue that either the Supreme Court or our court never said? [00:11:48] Speaker 03: I haven't seen that language either, Judge. [00:11:50] Speaker 03: I think the language they used was a vital state interest and a countervailing interest in Moses Cohen and in Colorado River. [00:11:59] Speaker 03: There has to be some vital interest to repair the matter to state court, and here, [00:12:04] Speaker 03: you have fundamentally a due process case, and there's no reason, there's no vital interest in the district government of hearing a substantive due process case or a procedural due process case. [00:12:16] Speaker 03: And by the way, the government entity, which would be the one that would assert the vital government interest, hasn't made that claim. [00:12:25] Speaker 01: Can we talk for a minute about the progress of the cases? [00:12:29] Speaker 01: So as I understand it, when the federal case was filed, you had a couple of dispositive motions adjudicated in Superior Court, and you had discovery had begun but was ongoing. [00:12:48] Speaker 01: Is that fair? [00:12:50] Speaker 03: There were no dispositive motions filed or decided [00:12:54] Speaker 03: on any issues in the federal, of a federal variety, on RICO due process, conspiracy substance due process. [00:13:03] Speaker 03: At that time, in D.C. [00:13:06] Speaker 03: Water's unrelated negligence litigation, several of the defendants moved to dismiss D.C. [00:13:12] Speaker 03: Water's claim for either failing to state a claim that their negligence claim wasn't viable, including the district. [00:13:21] Speaker 03: So the only dispositive [00:13:23] Speaker 03: motions that were decided when we filed the federal case in April were all related to defending against D.C. [00:13:30] Speaker 03: Water's negligence. [00:13:31] Speaker 01: Their negligence claim against Edge. [00:13:35] Speaker 03: A couple of people. [00:13:36] Speaker 01: Right. [00:13:36] Speaker 01: But that's transactionally related to the counterclaims and the crossclaims. [00:13:42] Speaker 03: Not at all, Judge. [00:13:44] Speaker 03: DC Waters' case was purely a negligence case. [00:13:49] Speaker 03: None of the issues that were decided dispositively or otherwise as to the negligence case have any bearing on the due process violations. [00:13:56] Speaker 03: None. [00:13:57] Speaker 01: Zero. [00:13:57] Speaker 01: What's the underlying conduct they said was negligent? [00:14:00] Speaker 01: I assume it has to do with figuring out whether the building is going to impair the sewer line underneath it. [00:14:10] Speaker 03: Several defendants. [00:14:12] Speaker 03: There was a district, and they said that the district was negligent in issuing the permit without DCWAR's approval, including the district employees. [00:14:20] Speaker 03: The negligence claims against Bellow and Bellow, which was a third-party inspector and a permit expediter, were, you should have discovered this during the course of your duties. [00:14:29] Speaker 03: The negligence against the seller was, I'm not sure of that theory now, but it had nothing to do with due process, and the negligence alleged against Edge was, [00:14:38] Speaker 03: If you had gone down to the surveyor's office, you would have found some surveys and discovered the existence of the tunnel sewer. [00:14:44] Speaker 03: Again, none of those issues relate in any way to the substantive procedure or due process. [00:14:51] Speaker 01: I mean, the reason you all are fighting is that this building was demolished and their costs associated with that. [00:15:01] Speaker 01: EDGE lost the building and DC Power had to pay, DC Water, sorry, had to pay for the demolition and people are fighting about who is at fault for that unfortunate event. [00:15:18] Speaker 03: All correct. [00:15:19] Speaker 03: But whether the building was taken down correctly or not, EDGE is still entitled to a hearing either before demolition or after demolition. [00:15:33] Speaker 03: So let's assume that they're correct. [00:15:35] Speaker 03: When all these people were negligent and the building had to come down and the government's right, EDGE is still entitled to fundamental due process laws. [00:15:44] Speaker 03: And that's what this case is all about. [00:15:46] Speaker 03: will be able to defend against their negligence claims for a variety of reasons, but the negligence claims of DC Water have no bearing on the merits of Edge's due process claims, they just do not, because his due process rights do not change. [00:16:04] Speaker 01: No, but they've raised negligence claims as well as due process claims. [00:16:10] Speaker 03: They've not raised any due process claims. [00:16:13] Speaker 03: DC Water hasn't. [00:16:14] Speaker 03: They've only raised negligence claims against those defendants who, by the way, are not in our case. [00:16:19] Speaker 01: EDGE has raised both types of claims in both forms. [00:16:24] Speaker 03: Well, that's correct, Judge, and when we had to, [00:16:27] Speaker 03: because under the Gillis case, which I didn't emphasize enough in my brief, when you have a case filed in federal court, you're required, required to allege all the claims that you have at that time to test the jurisdiction of the court. [00:16:44] Speaker 03: So we had to allege the negligence claims that we knew about and all the other claims that we knew about in the federal case to test the court's jurisdiction under that case. [00:16:53] Speaker 01: And you're being punished for that. [00:16:55] Speaker 01: I would have fought [00:16:56] Speaker 01: under normal claim preclusion rules, whether you're in superior court or district court or anywhere else, you'd have to raise all of those claims together precisely because they all arise out of the same transaction or occurrence, which is the demolition of the building. [00:17:19] Speaker 03: It's true that DC has a compulsory counterclaim a little bit more nuanced than you just described. [00:17:25] Speaker 03: But what happened here is that during the time we first filed the claims in Superior Court, we learned additional information to support the RICO claims, the Freedom of Information Act violations, the conspiracy, et cetera. [00:17:40] Speaker 03: So we did not raise all of the claims that we could have raised then because we just didn't have that information. [00:17:48] Speaker 03: So from the period that the case was stayed, [00:17:50] Speaker 03: I didn't just sit around on my laurels. [00:17:52] Speaker 03: I sent FOIA requests out, and I reviewed the 10,000 documents they produced and generated more FOIA requests. [00:17:58] Speaker 03: And it was during that time frame that we learned the full, spoken extent of how vast the conspiracy was. [00:18:05] Speaker 01: So just on the discovery, how much discovery had occurred when the federal claim was filed, and then how much has happened since? [00:18:18] Speaker 03: I don't think it's permissible, but I'll answer the question to think about what has happened since, because we've been doing what the judge did. [00:18:25] Speaker 03: He's extending the deadline for it. [00:18:28] Speaker 01: Well, I mean, I get that we're going outside the record, but why? [00:18:33] Speaker 03: So, D.C. [00:18:34] Speaker 03: Water, at the very beginning of the case, served comprehensive discovery requests on all the defendants, actually enabled these claims, except, interestingly, the District of Columbia. [00:18:44] Speaker 03: There was a stay of discovery initially in that case, and I'm going by memory, April of 2016? [00:18:53] Speaker 03: Right? [00:18:53] Speaker 03: Because there were just positive motions. [00:18:56] Speaker 03: And that state of discovery was not lifted until, I believe, September at a status hearing. [00:19:02] Speaker 01: Of 17. [00:19:03] Speaker 03: Of 16. [00:19:04] Speaker 01: Of 16. [00:19:04] Speaker 01: Right. [00:19:05] Speaker 03: Right. [00:19:05] Speaker 03: So we then, discovery is re-engaged. [00:19:09] Speaker 03: EDGE had served discovery requests a couple sets to the district and the DC Water in the summer of 2016. [00:19:18] Speaker 03: We got partial responses in [00:19:22] Speaker 01: I don't need all the gory details, but what I'm getting at is, has this train left the station? [00:19:32] Speaker 01: We're two and a half years into discovery in the Superior Court case, assuming it's been ongoing. [00:19:41] Speaker 01: What's the point at this point in starting from scratch in the federal case? [00:19:48] Speaker 03: The point is you can't take the train down the station two years later. [00:19:52] Speaker 03: You have to measure what the judge did at the time he did it and to hold that delay against us. [00:20:00] Speaker 01: We can't stay the superior court proceeding. [00:20:04] Speaker 01: I mean, I understand. [00:20:07] Speaker 01: your point that you've been disadvantaged by the passage of time. [00:20:11] Speaker 03: The answer is yes. [00:20:13] Speaker 03: We've done more discovery. [00:20:14] Speaker 03: There's been perhaps 12 to 15 depositions, rough numbers, all of which, mostly of which were taken by DC Water. [00:20:24] Speaker 03: Edge has taken two. [00:20:27] Speaker 01: It would be very surprising if that case didn't go to judgment first. [00:20:32] Speaker 01: And once it goes to judgment, [00:20:34] Speaker 03: I disagree because we have still probably 20 or 30 depositions to take. [00:20:40] Speaker 03: We've got a discovery cut off now at the end of March. [00:20:43] Speaker 01: Right, but in the federal case, you haven't even started. [00:20:45] Speaker 03: Well, we couldn't. [00:20:46] Speaker 01: Right. [00:20:48] Speaker 01: And can we not consider that at all? [00:20:52] Speaker 03: I don't believe you could, because you'd then be punishing us for the delay in the appeal being processed. [00:20:58] Speaker 03: And that case is going to run, which is [00:21:00] Speaker 01: Fair enough, but the alternative is to remand for a fool's errand. [00:21:05] Speaker 03: Well, I think the alternative is to reverse for the reasons we've stated. [00:21:11] Speaker 03: We go back to federal court, and then we do what we did in the state court case. [00:21:15] Speaker 03: And the judge was receptive to that. [00:21:18] Speaker 03: And we say, OK, DC Waters negligence claims that that ship has left the train. [00:21:23] Speaker 03: They go forward. [00:21:24] Speaker 03: They prove those cases. [00:21:25] Speaker 03: We defend them. [00:21:27] Speaker 03: But edges federal claims in the Superior Court case? [00:21:30] Speaker 03: State. [00:21:30] Speaker 03: and they proceed in federal court. [00:21:33] Speaker 03: And there's a lot of advantages to that because we're not dragging in Bellow and Bellow and first-hand LLC, et cetera, into all these due process claims that don't involve them, nor are we involving them. [00:21:47] Speaker 01: So you could seek a stay of the federal claims in superior court? [00:21:52] Speaker 03: Absolutely, which we tried to do. [00:21:54] Speaker 03: And this is one of the reasons why Judge Kelly committed error. [00:21:57] Speaker 01: And why would the superior court [00:22:01] Speaker 01: sort of in the reverse Colorado River be more likely to say, oh, the mere pendency of parallel claims is enough to make us stay? [00:22:13] Speaker 03: I don't know the answer to what Judge Epstein would do, and I thought we were presenting to him, but I think he would be quite receptive to the idea of a stay because it would streamline [00:22:26] Speaker 03: the negligence case to just the negligence issue and those defendants and not have to bring in this whole kit and caboodle of new defendants from the federal case. [00:22:36] Speaker 00: My time is definitely up. [00:22:37] Speaker 00: I just want to explore this question a little bit more. [00:22:40] Speaker 00: So in Colorado River itself, the court looked as the key date, the motion to dismiss. [00:22:50] Speaker 00: It did not look at what had happened to the Supreme Court. [00:22:53] Speaker 00: by the time the case got to the Supreme Court, several years later. [00:22:57] Speaker 00: And here the motion to dismiss was filed, the motion to dismiss on Colorado grounds was filed about a month or two after you filed your complaint. [00:23:06] Speaker 00: So if you had a different rule, you would probably always have to affirm a dismissal because by the time it gets to this court, given the length of time it takes to get to this court, [00:23:22] Speaker 00: very likely that things were already going to have continued for another year or two. [00:23:26] Speaker 00: And if that were the rule, we'd end up with affirming our responsibility to review whether Colorado River decisions are correct would be eliminated because there would be, as they say, facts on the ground. [00:23:43] Speaker 03: Vis-a-vis this case, Judge, I understand the Court's future vision, and I'm glad you're thinking about the future implications of it. [00:23:52] Speaker 03: I don't think so, per se, because this Judge measured the wrong case starting date for starters, and you have a baby federal case pending at the same time as a baby state case, and I think the unflagging obligation would rule the day. [00:24:09] Speaker 00: Yeah, all I'm saying is that if we were to measure by where we are today in every case, that is by the court of appeals date in every case, that seemed to me to undermine the whole point of Colorado River. [00:24:23] Speaker 03: It most certainly would, which is why I suggested, I think, that the date the motion was right for review would be a proper measuring point. [00:24:35] Speaker 03: But what I don't think would be fair would be to allow the delay in the court's deciding the motion. [00:24:43] Speaker 00: If the Supreme Court reaches a conclusion on some elements of this before federal court does, and there is issue of preclusion or collateral estoppel, that's just the way it is. [00:24:53] Speaker 03: That's correct. [00:24:54] Speaker 00: And the normal decision between a federal court and a state court is that both go on. [00:25:01] Speaker 00: That's what the Supreme Court said in Colorado. [00:25:03] Speaker 00: Generally, as between state and federal courts, the rule is the pendency of an action in the state court is no barter proceedings concerning the same matter in the federal court. [00:25:12] Speaker 00: So you'll just be stuck if there's preclusion, and that's just the way it is. [00:25:15] Speaker 03: That's correct, Judge. [00:25:16] Speaker 03: And Judge Kelly did not take that into consideration as some of the other district court judges had and said, you know what, I'm actually going to have some streamlined issues in my case because some of them will be gone. [00:25:28] Speaker 03: There's going to be a lot that may not be needed because we'll get that benefit too. [00:25:33] Speaker 03: So I think the judge in the Sadler decision, I believe, did it that way and looked at it that way, and I think that's the correct way to look at it. [00:25:41] Speaker 00: I'm sorry, I may not have gotten exactly in the interchange between yourself and Judge Katz. [00:25:45] Speaker 00: Has there been discovery on the due process issue? [00:25:51] Speaker 03: We have served discovery requests to ask for all the communications in the spirit court. [00:25:56] Speaker 03: Yes. [00:25:57] Speaker 03: Yes. [00:25:58] Speaker 03: And we have done some requests for admissions to get the district to admit that they didn't send out the notice they were required. [00:26:05] Speaker 03: So yes, there has, but I reserved. [00:26:09] Speaker 03: the bulk of the discovery related to due process claims until after the state decision came down, because I'm kind of in a damned if you do, damned if you don't. [00:26:20] Speaker 03: If I pursue actively the due process bans in Superior Court, then Judge Kelly's gonna hold that against me and say my case has progressed further. [00:26:32] Speaker 03: Thank you. [00:26:51] Speaker 04: Good morning, Your Honors, and may it please the court. [00:26:53] Speaker 04: It's true that the Colorado River Doctrine is a narrow doctrine, but it does apply, and it does apply in extraordinary cases. [00:27:00] Speaker 04: And this is an extraordinary case. [00:27:02] Speaker 04: Now, what you just heard was the claim that you have some run-of-the-mill negligence case in one court, the Superior Court, and federal claims over here in the federal court, and what are we talking about? [00:27:15] Speaker 04: But that's not the case. [00:27:17] Speaker 04: What happened here is, [00:27:19] Speaker 04: It started out as a negligence in D.C. [00:27:22] Speaker 04: statutory case. [00:27:23] Speaker 04: Then EDGE comes in and brings the very federal claims that it's bringing in federal court in the Superior Court. [00:27:31] Speaker 04: And it litigates those. [00:27:32] Speaker 00: That's what always happens. [00:27:34] Speaker 00: That is the premise. [00:27:36] Speaker 00: That's the first threshold requirement of Colorado River. [00:27:40] Speaker 00: There be parallel cases going on in both courts. [00:27:44] Speaker 00: That's what that section of the Supreme Court's opinion I just read is about. [00:27:49] Speaker 00: Cases proceed in both courts. [00:27:51] Speaker 00: So it can't be enough. [00:27:53] Speaker 00: Maybe you don't like it. [00:27:55] Speaker 00: I understand. [00:27:55] Speaker 00: Maybe it seems unfair that you can bring the same case in another court. [00:27:59] Speaker 00: But that's the system we have. [00:28:01] Speaker 00: We have federal courts and we have state courts. [00:28:03] Speaker 00: So this is not enough. [00:28:05] Speaker 00: This is going to happen in every single case in which Colorado River is claimed. [00:28:10] Speaker 04: No, Your Honor. [00:28:10] Speaker 04: With respect, I disagree. [00:28:12] Speaker 04: In the typical case where a court finds that the claims are the same, perhaps with different names, you generally have claims that are brought by one party in one court and a different party in another. [00:28:25] Speaker 04: Here you have the unique circumstance in which the same party is trying to litigate the same issues in two courts, and by using proxies in the superior court, [00:28:34] Speaker 04: is able to obtain certain rulings or attempts to obtain certain rulings. [00:28:38] Speaker 00: Aren't most of the claims they're raising superior court either defenses or counterclaims? [00:28:44] Speaker 00: They are. [00:28:44] Speaker 00: So it's not as if they filed in both courts. [00:28:47] Speaker 00: But they're trying to defend themselves. [00:28:49] Speaker 00: I have nothing to do on the merits here, OK? [00:28:50] Speaker 00: Just to be absolutely clear, I have the faintest idea what they're doing. [00:28:53] Speaker 00: You're the luckiest man in the room in that case, Your Honor. [00:28:55] Speaker 00: I got it. [00:28:55] Speaker 00: I got it. [00:28:57] Speaker 00: And maybe Judge Kelly thought he would be the luckiest person not to have to consider that. [00:29:00] Speaker 00: But that can't be the question. [00:29:02] Speaker 00: We have never affirmed a Colorado River case, and neither has the Supreme Court other than Colorado River. [00:29:12] Speaker 00: And in Colorado River, when they said something was exceptional, rare, narrow, all the words the Supreme Court has said, highly unusual, all of those words, [00:29:25] Speaker 00: Those don't seem to me to apply in the same way. [00:29:28] Speaker 00: I understand. [00:29:28] Speaker 00: Maybe this isn't garden variety, but there is a broad spectrum between garden variety on one side and rare, exceptional, narrow on the other side. [00:29:39] Speaker 00: Well, if I may. [00:29:40] Speaker 00: Just to define, what the court said was exceptional and the only case that a court with power over us has ever decided. [00:29:50] Speaker 00: can involve thousands of separate issues, which would have to be decided piecemeal in state court, and the federal statute, the McCarran Act, which wanted all those issues to be decided in state court. [00:30:05] Speaker 00: We don't have anything exceptional in those terms here, do we? [00:30:09] Speaker 00: Well, actually we do, Your Honor. [00:30:10] Speaker 04: As Moses H. Cohn made clear, [00:30:13] Speaker 04: The fact that the McCarran Act said that there was or the Supreme Court read the McCarran Act is showing a congressional preference for having these matters, all water rights cases, decided in a single court. [00:30:30] Speaker 04: Moses H. Cohn made clear that it didn't require that kind of congressional thing, but what Moses Cohn said was, [00:30:36] Speaker 04: The point was, and what was important in Colorado River, was the need to avoid piecemeal litigation, whether that arose through a statute or not. [00:30:46] Speaker 01: If the Supreme Court wanted to... That's totally common. [00:30:50] Speaker 00: Sorry. [00:30:51] Speaker 00: I'm just going to read from what was going on. [00:30:53] Speaker 00: We recognize that the amendment, meaning the McCarran Act, represents Congress's judgment that in the field of water rights is one peculiarly appropriate for comprehensive treatment. [00:31:05] Speaker 00: and the state courts. [00:31:06] Speaker 00: Absolutely. [00:31:07] Speaker 00: So you just said that Moses suggested that it wasn't, that the McCarran Act's view on this wasn't that important. [00:31:19] Speaker 00: Did I misunderstand your honor? [00:31:20] Speaker 04: You did, your honor. [00:31:21] Speaker 04: What I'm saying is, it's not saying it wasn't important, but what the court took from that in Moses Cohn was to say, you don't need a federal statute in place, as Edge has suggested. [00:31:30] Speaker 04: What it says is, there's a very strong importance [00:31:34] Speaker 04: for avoidance of piecemeal litigation. [00:31:37] Speaker 04: And as Moses Cohen says, you weigh these factors differently in different cases. [00:31:41] Speaker 04: And in Colorado River, that was the predominant feature. [00:31:45] Speaker 04: But Moses Cohen also goes on to say, talking about the predominance of local issues, which is another thing that you have here. [00:31:53] Speaker 01: I'm sorry. [00:31:54] Speaker 01: I mean, it seems to me you have [00:31:59] Speaker 01: a very good argument for abstention if this is just a practical judgment about efficient use of judicial resources. [00:32:15] Speaker 01: But it's obviously a much tougher argument if the standard is something like what the chief judge has been suggesting to you. [00:32:26] Speaker 01: I'm having a hard time seeing as much sense as it makes to say, well, the Superior Court case was much farther along, there could be [00:32:40] Speaker 01: duplication of effort or inconsistent judgments. [00:32:46] Speaker 01: All of that seems to me will happen in virtually every case where there are parallel proceedings. [00:32:52] Speaker 01: So to me, if you're right about truly exceptional, it has to be because there's something special about [00:33:02] Speaker 01: the state law issues that Judge Kelly thought really should be decided by a state court judge. [00:33:10] Speaker 04: And we have those here, Judge Kansas. [00:33:13] Speaker 04: I mean, you have the questions involving, did DCRA have the authority to issue the raise notice? [00:33:18] Speaker 04: Did DCRA have to conduct its own investigation as to whether the building was the cause of the crack in the sewer? [00:33:25] Speaker 04: Did DCRA have to conduct its own investigation [00:33:28] Speaker 04: to determine whether the repairs to the sewer were sufficient to allow the building to stand. [00:33:36] Speaker 04: All those are part and parcel [00:33:37] Speaker 04: you know, other questions which are replete in the federal claim as well, having to do with was, you'll notice there are paragraphs after paragraphs of what pinpoint underground, which is the marking contractor did EC water, what it didn't do, and whether that, the assumption in the briefing in this case is that that's a non-delegable duty, where you have a decision in the superior court that says, no, in fact, that is a delegable duty. [00:34:04] Speaker 04: So, you know, all these issues of, [00:34:07] Speaker 04: not only local law, but issues of first impression of local law, as this court said in the Handy case, those are most suitable for the local court, in this case, the Superior Court. [00:34:22] Speaker 04: Now, Judge Garland pointed out that this court has, by my account, thrice addressed Colorado River, and in each case it said, no, there is no Colorado River abstention. [00:34:34] Speaker 04: The first case is Hoy in which the federal claim is under a federal statute in federal court. [00:34:40] Speaker 04: The state court has nothing to, there is no federal claim in the state court. [00:34:44] Speaker 04: And what this circuit said was the judge did not, when he invoked Colorado River, didn't even go through the factors. [00:34:52] Speaker 01: Then we get to the Ryman case. [00:34:54] Speaker 01: Well, but we also said he couldn't have invoked it, and he would have been reversed if he had. [00:35:00] Speaker 04: Well, of course, because there you have a statutory claim in federal court, and then you have a breach of contract claim or standard state court claim. [00:35:10] Speaker 04: You don't have any federal claim in the Superior Court. [00:35:12] Speaker 04: So that doesn't even get to the parallel case issue. [00:35:15] Speaker 04: So then you have Ryman. [00:35:17] Speaker 04: Which, again, is a case in which this court actually remanded for more fact-finding because the court didn't go out of its way to analyze the factors. [00:35:28] Speaker 00: And again... It didn't go out of its way. [00:35:30] Speaker 00: The court had one sentence which said... [00:35:33] Speaker 00: Colorado River means we're getting rid of this case. [00:35:36] Speaker 04: That's all. [00:35:36] Speaker 04: Right. [00:35:37] Speaker 04: Well, I'm trying understatement, Your Honor. [00:35:39] Speaker 04: And then in handy, once again, you have a situation in which the court determined that, boy, this seems like a district judge, with all respect, who seems to be punning a case, and there's nothing more. [00:35:51] Speaker 04: That is not this case, where you had all of these claims, and the federal claims, by the way, [00:35:58] Speaker 04: cannot be determined without all of these state court issues involved. [00:36:03] Speaker 04: Because the essence of the federal claim, when you look at them, is that DC Water knew something about the engineering and misrepresented the engineering reports to DCRA. [00:36:14] Speaker 04: And there was a conspiracy as a result of that. [00:36:16] Speaker 04: And that led to all these constitutional deprivations. [00:36:19] Speaker 04: So don't buy for a second Edge's claims. [00:36:21] Speaker 02: I'm not sure that the federal claims do depend that much on state law. [00:36:27] Speaker 02: It may depend very much on what actors in the state system did. [00:36:35] Speaker 02: But I mean, normally, a state's violation of its own laws does not create a due process problem. [00:36:41] Speaker 02: True. [00:36:41] Speaker 02: And so I think the ability of the federal case to go ahead [00:36:48] Speaker 02: significantly independently of state law issues is being neglected here. [00:36:54] Speaker 04: Well, with all respect, Judge Williams, you know, we again get back to the statutory issues of DC code that go to these questions in terms of did, were the procedures followed [00:37:05] Speaker 04: for, you know, for the raise permit. [00:37:10] Speaker 04: Were, you know, did D.C. [00:37:11] Speaker 00: water... Don't we have to do that? [00:37:14] Speaker 00: Assume that no case had been brought in the state court. [00:37:16] Speaker 00: Right. [00:37:17] Speaker 00: Whenever there's a claim of a violation of due process, a plaintiff has a property right. [00:37:25] Speaker 00: And that always involves, under Supreme Court law, that almost always involves an analysis of state law, of what entitlements people have under state law. [00:37:36] Speaker 00: And sometimes state law isn't enough, as Judge Williams said, so that doesn't get them there. [00:37:40] Speaker 00: Expectations under state law, et cetera. [00:37:42] Speaker 00: Every time the Supreme Court decides a taking without due process, it has to evaluate state law. [00:37:51] Speaker 00: That is the garden variety job we do whenever we do process cases. [00:37:58] Speaker 04: Fair enough. [00:37:58] Speaker 04: But here's the difference in this case, is it's not enough to say, do you have a property right in this? [00:38:04] Speaker 04: In its briefing, Edge makes the assumption that it's going to win on that issue. [00:38:10] Speaker 04: It is a highly contested issue having to do, because here's the quirk in the case. [00:38:15] Speaker 04: In the recorded chain of title, [00:38:18] Speaker 04: that there is not an easement present. [00:38:21] Speaker 04: But at the same time, the pipe going through and the recordation of a 50-foot right of way does exist in the surveyor's office. [00:38:30] Speaker 04: And through a number of doctrines, that applies to convey to the district and to DC Water the rights that EDGE is now claiming. [00:38:39] Speaker 04: So it's a very complicated issue of state law. [00:38:43] Speaker 00: I don't know that. [00:38:45] Speaker 00: The question here is who had the rights? [00:38:47] Speaker 00: Did the person claiming that the rights were taken, did that person have those rights? [00:38:52] Speaker 00: This is what we do all the time in a due process case. [00:38:55] Speaker 00: Sometimes it's hard to figure out whether they have the right. [00:38:58] Speaker 00: Sometimes it's not hard. [00:38:59] Speaker 00: But being hard isn't capitalizing. [00:39:01] Speaker 04: And the issue is not competence, nor is the issue difficulty. [00:39:04] Speaker 04: But as Judge Kelly pointed out, Edge brings its counterclaims and its cross-claims. [00:39:11] Speaker 04: in October of 2016. [00:39:16] Speaker 04: Then in April of 2017, decides to do the same things in a federal action, by which time the train, to use Judge Patsas's phrase, which is very apt, the train had left the station. [00:39:27] Speaker 04: There had been extensive work on the case. [00:39:30] Speaker 04: There had been extensive discovery. [00:39:32] Speaker 01: How much? [00:39:33] Speaker 01: How much discovery at the moment the federal case was filed? [00:39:38] Speaker 04: At that point, it was primarily document discovery, but extensive document discovery. [00:39:44] Speaker 04: There had been dispositive motions on these critical issues. [00:39:48] Speaker 04: At that point, the experts had not been disclosed because the parties were working them up based on decisions that are made in that case. [00:39:57] Speaker 04: And so the whole thing has moved. [00:40:00] Speaker 04: And we're now talking about trying an absolutely identical [00:40:07] Speaker 04: but extraordinarily complicated, extraordinarily expensive case again, but under entirely different sets of rules. [00:40:15] Speaker 04: For instance, Edge could claim that it is not bound by race judicata on the critical issue of the nondelegability to pinpoint, because Edge wasn't the party to that summary judgment motion. [00:40:28] Speaker 04: It had a proxy bellow bring that motion. [00:40:30] Speaker 04: It was cheering on from the sidelines. [00:40:32] Speaker 04: So now it will go into federal court and say, [00:40:35] Speaker 04: Yeah, well, now we get to change this around and get a second bite at the apple, because we weren't technically the party and raised judicata doesn't apply. [00:40:42] Speaker 04: Again, something very unique to this case that makes this not a garden variety parallel bit of litigation. [00:40:49] Speaker 00: Well, the district court will certainly be able to defer to the superior court if the district court is persuaded that the superior court's view of DC law is correct. [00:41:01] Speaker 00: So that will resolve that question. [00:41:03] Speaker 00: And it's not as if we have a Court of Appeals opinion in the District of Columbia. [00:41:10] Speaker 00: We just have a Superior Court position, which is what always happens with trial courts. [00:41:15] Speaker 00: And one trial court can defer to another, if necessary. [00:41:19] Speaker 04: But we get back to why the Supreme Court came down with Colorado River in the first place. [00:41:25] Speaker 00: Now you're back to a problem. [00:41:28] Speaker 00: Moses Cohen and the Supreme Court told us why they did it in Colorado River. [00:41:32] Speaker 00: Thousands of individual cases about water rights in Colorado and in the West, far away from where the case was going to be litigated, which is not the case here, piecemeal litigation in Egypt, thousands of cases, which is not going to happen here, a comprehensive water rights system of both the state and the federal government, which both want to done in the state courts. [00:41:55] Speaker 04: Except the Supreme Court, if it wanted to say, we're going to limit this doctrine when a federal statute indicates a congressional preference to try all these actions in one court, that is what we're going to call the doctrine. [00:42:08] Speaker 04: But it didn't. [00:42:08] Speaker 04: And in Moses Cone, it had the opportunity to clarify that and say, when we say exceptional circumstances, [00:42:14] Speaker 04: We're talking about a statute, or we're talking about a long way from the courthouse. [00:42:18] Speaker 04: And keep in mind, it's not 1,000 separate lawsuits. [00:42:21] Speaker 04: It's 1,000 people who all they have to do is show their priority in a water right, which means they tender a piece of paper that said, here's my evidence that I first started drawing irrigation water on June 5, 1862. [00:42:34] Speaker 04: That's all there is to it. [00:42:36] Speaker 04: Here we have extraordinarily complex claims that, with all respect, Your Honor, if you're suggesting we now try this again, [00:42:42] Speaker 04: It has been tried. [00:42:44] Speaker 00: Has it already been tried? [00:42:45] Speaker 00: Has the case been tried? [00:42:46] Speaker 04: It has it. [00:42:48] Speaker 00: It has or hasn't? [00:42:48] Speaker 00: It has not. [00:42:49] Speaker 00: You just said try it again. [00:42:50] Speaker 04: Because by having these two cases, we're moving ahead with two separate cases. [00:42:59] Speaker 02: Both of you have emphasized or discussed at some length the discovery. [00:43:07] Speaker 02: And is there anything that limits the product of the discovery [00:43:12] Speaker 02: to the court in which it doesn't take place in court, but agreements in the court file precipitate it or govern it. [00:43:25] Speaker 02: The products are completely usable across [00:43:29] Speaker 04: Yes, and if I understand the question, sure, I'm not suggesting that everybody has to start at square one. [00:43:35] Speaker 04: The documents that are produced don't morph into something else. [00:43:40] Speaker 04: Certain of the expert opinions on the engineering could be used. [00:43:42] Speaker 04: So I understand that. [00:43:44] Speaker 04: But the critical thing is certain of the critical rulings in terms of what is and isn't going to be allowed in the Superior Court case could be very different from what is and isn't going to be allowed in this case that's now going on in the federal case. [00:43:58] Speaker 04: What the Supreme Court was talking about in Colorado River and repeated in Moses H. Cohn was this desire for the wise administration of judicial resources. [00:44:10] Speaker 04: It didn't say this is so narrow that we're going to allow unless you have a federal statute that involves water rights. [00:44:17] Speaker 04: that we're going to allow, in violation of rule one, this huge morph to have two cases which could be decided maybe with some of the same evidence and maybe some of the same experts, but where you have the same claims and the same essential parties, yet you could have two different outcomes and two different rules of both remaining discovery and adjudication. [00:44:37] Speaker 04: There have been discovery rulings made in the state court [00:44:40] Speaker 04: that wouldn't be binding on the federal court, maybe persuasive, maybe not. [00:44:43] Speaker 04: But if we're talking about, well, couldn't we just all kind of make use of everything in one setting and not have a do-over, then why aren't we proceeding as Judge Kelly wisely saw fit to do [00:44:58] Speaker 04: in the state court. [00:45:00] Speaker 04: Yes, it's true that you don't easily give up federal jurisdiction, but this court is to... What's your best, what are your best one or two cases from other circuits? [00:45:11] Speaker 01: We clearly would be going, if we were to affirm for you, we would be going beyond what the Supreme Court and what this court has done. [00:45:23] Speaker 01: We may not be [00:45:24] Speaker 01: going beyond what other circuits have done, so what are your best? [00:45:28] Speaker 04: Tyre versus Beloit is a case from the Seventh Circuit. [00:45:32] Speaker 04: It's in the brief, I assume. [00:45:33] Speaker 01: It is in the brief. [00:45:34] Speaker 04: Tyre, T-Y. [00:45:35] Speaker 04: I think it's T-Y-R. [00:45:39] Speaker 03: T-Y-E-R. [00:45:40] Speaker 03: T-Y-E-R. [00:45:40] Speaker 04: Okay, there we go, versus the city of Beloit in Wisconsin. [00:45:44] Speaker 04: And interestingly, that's a case, too, where it involves a city forced demolition of a building and all the rest. [00:45:51] Speaker 01: I'll take a look. [00:45:52] Speaker 01: There's one more question. [00:45:54] Speaker 01: In terms of parallelism, the RICO count, all of the federal claims seem to me highly parallel, except maybe the RICO count, which is the predicate acts of mail fraud and wire fraud, and I didn't see that there were fraud counts in the Superior Court action. [00:46:13] Speaker 01: Is that right? [00:46:14] Speaker 04: Well, they weren't labeled as such, but as terror itself makes clear, [00:46:18] Speaker 04: The labels are unimportant. [00:46:19] Speaker 04: And what happened in the Superior Court case is that all these claims say that DC Water and DCRA conspired by DC sending letters to DCRA and claiming that the letters were misleading, fraudulent, whatever, whether that word is used or not. [00:46:38] Speaker 04: Because supposedly, DC Water mischaracterized what the Hilles-Carnes engineering firm said about the exigency of the circumstance and so forth. [00:46:48] Speaker 04: So it's the same beast with a different name, Your Honor. [00:46:52] Speaker ?: OK. [00:46:53] Speaker 04: Thank you. [00:46:53] Speaker 04: All right. [00:46:53] Speaker 00: Thank you, Your Honor. [00:46:55] Speaker 00: Is there a remaining time? [00:46:58] Speaker 00: We'll give you two minutes if you could hold yourself to that, since everybody's gone over. [00:47:02] Speaker 03: Certainly beyond the time. [00:47:06] Speaker 03: Judge, quickly, please, read Tyrer. [00:47:09] Speaker 03: Read it. [00:47:11] Speaker 03: In Tyrer, that state court litigant litigated the case for four years before they filed a federal case. [00:47:18] Speaker 03: So if you want to follow Tyrer, there's no comparison to Tyrer and what happened here. [00:47:23] Speaker 03: We had a date in the woods, counterclaim, and in Tyrer, you had an entire four years of litigation. [00:47:31] Speaker 03: And Tyra, of course, I think has submission creep in it, and they have 10 to 12 factors in that decision. [00:47:37] Speaker 03: I would encourage the court not to creep away from the Supreme Court's factors. [00:47:43] Speaker 03: On moving forward, Judge, think about what happens if this case is affirmed. [00:47:51] Speaker 03: You have a federal judge saying that statutory interpretation is an exceptional duty, or exceptionally important. [00:48:00] Speaker 03: But you have a federal judge saying that an issue of delegation is an exceptional circumstance. [00:48:05] Speaker 03: You have a federal judge saying interpreting DC Code 6-801A that says a mayor shall examine the structure is an exceptional circumstance. [00:48:14] Speaker 03: You have a judge saying that the public duty doctrine, which has been litigated in this case for 20 years and is probably being litigated today somewhere, is an exceptional circumstance. [00:48:25] Speaker 03: And then you have a judge saying that he couldn't find any cases on point [00:48:29] Speaker 03: on due process and demolition, and that made the case exceptional. [00:48:34] Speaker 03: To be candid, Judge, the law clerk said they must have had a bad day. [00:48:37] Speaker 03: Because if you go into Lexis and you type due process, quote, plus demolition, you're going to find 50 cases where federal courts have handled due process cases in the context of the demolition. [00:48:48] Speaker 03: I think this judge wanted to get rid of on-table case [00:48:52] Speaker 00: I don't think it's necessary to impugn the motives or even fair to impugn the motives of the district judge. [00:48:58] Speaker 00: This is just a question of whether this is fitting for Colorado River or not. [00:49:07] Speaker 00: Fair to the district judge, he was looking at other district courts that had done it and I think [00:49:14] Speaker 00: The real question is the one you raised, which is whether this is missionary that we should put a stop to. [00:49:19] Speaker 00: But I don't think we need to worry about the motivations. [00:49:22] Speaker 03: And I didn't mean to cast this version, Judge. [00:49:25] Speaker 03: I got a little robbed. [00:49:26] Speaker 03: What I meant to say was that he didn't follow the mandate and why, where that this court said very specifically that the difficulty of a case is not of valid grounds for extension. [00:49:42] Speaker 03: Thank you very much. [00:49:44] Speaker 00: Thank you both. [00:49:45] Speaker 00: We'll take a minute.